Upland Forest or Forested Wetlands?

Environmentalist alleges Antrim County official looked the other way as wetlands were destroyed

Charles and Sherry Davis have been coming to Northern Michigan for decades. Two years ago, they decided they wanted their own little piece of it.

They found a place they love just north of Bellaire, surrounded by woods and with private access to Intermediate Lake just down the street.

On a trip north from their Chicago suburb in April, however, they discovered a threat to their peaceful retreat – a neighbor who owned land behind them had begun a wide-scale construction project in woods they thought were forested wetlands.

“One of the reasons we bought the place was, we were given to understand by all the neighbors that it was all wetland,” Davis said. “We thought, ‘Well, great. Nobody’s going to build back there.’” Then, earlier this year, dozens of trees and stumps were removed and a bulldozer and a large dump truck cut their way into the woods, leaving behind tons of fill sand to make a road roughly 540 feet into the woods and 20 feet wide to a spot near the Davis property where the sand foundation of a garage had been laid.

“I arrived and went to the back deck and was shocked,” Davis said.

‘REALLY FREAKED OUT’

Davis, a retired high school English teacher from Park Forest, Ill., might not have known what to do but for a remarkable coincidence – he attended college years ago with Northern Michigan Environmental Action Council board chairman Greg Reisig, a passionate environmental activist and defender of wetlands, and they remain friends.

It happened that on the weekend when Davis discovered the new road, Reisig and his wife were expected for Easter dinner.

“When we looked back there on our deck, he said, ‘What’s going on?’” Davis said. “Greg just was utterly amazed, incredulous and appalled when we walked back there. He said to me, probably 10 or 12 times, he said, ‘Chuck, this is all wetlands, none of this should have happened.’” In fact, when Davis considered buying the property, he’d asked Reisig about the land behind the house and whether anyone could develop it.

Reisig was convinced it was forested wetlands that could not be developed.

That left Davis somewhat reassured, but Reisig warned him that just because there are wetlands doesn’t mean the bulldozers will stay away.

That April weekend when he discovered the construction, Davis said he got a better idea of what Reisig meant.

He said he confronted the operators of the bulldozer and the dump truck.

“I went back there and I said, ‘What the heck is going on?’ and they said, ‘We’re putting in a road,’ and I said, ‘This is all wetland,’” Davis said. “One of the guys said, ‘If it’s wetland, you can get another expert up here and he’ll tell you it’s not.’ “I was just amazed. I was freaked out. I was really freaked out.”

‘NO TRESPASSING’

Davis knows his neighbor’s property well. When times were better, he’d talked to the landowners, Scott and Nancy Holt, of Rockford, near Grand Rapids, about purchasing some of their property, and he said he received permission to check out the land.

When he explored the property he said it looked to his non-expert eye like wetlands.

One wetland indicator Davis said he found, in addition to dark, hydric soils, was an artesian well bubbling up from the ground, forming several trickles of running water that merged and formed a stream that flowed into Intermediate Lake.

“You can see right where it comes out of the ground, it emerges in two or three little rivulets that come together and form a stream,” he said.

Out on the lake, where kayakers can see that trees have been knocked down so that people can cross the flowing water, Davis said the stream appears to be a hub of loon activity.

The source of the spring is very close to where sand was dumped to create the foundation for the garage, Davis said.

“He’s got to have messed with that (stream) already, in my humble, nonscientific opinion,” Davis said. “Now you’re talking about a source for water for the Chain of Lakes.”

Davis no longer has permission to enter the Holt’s land.

As questions about wetlands were raised, “No Trespassing” signs appeared around the Holt property.

‘MAJOR WETLAND FILL HAS NOT OCCURRED’

As Reisig and Davis have raised questions about the construction and have alleged that a large wetlands fill took place, Steven Voice, the environmental consultant who the Holts hired to conduct a wetlands delineation on the property, said unfair accusations have been leveled against him and his clients.

He said he and his clients have followed the law.

“The Holts have had a contractor install a driveway on an upland portion of their site. Everything is entirely restricted to upland,” Voice said. He said the area where the road and garage foundation were constructed was all upland.

He said the Holts are aware there are wetlands on the property and they have not disturbed those areas.

“The allegation that the road and garage pad were built on wetlands is totally false and without merit,” Voice said. “A major wetland fill has not occurred on this site, I want to make that clear.”

Voice said he and the Holts should not be painted as environmental scofflaws.

“The Holts sought the appropriate counsel to find out if they had wetlands, they got the appropriate permits,” Voice said.

MEMORIES DIFFER

Reisig said he’s unwilling to let a determination from Voice settle the matter, however.

Around a year ago, long before the bulldozer arrived, Davis, at Reisig’s advice, asked Heidi Shaffer, the Antrim County soil erosion officer responsible for Part 91 soil erosion permits, out to the property to take a look and make an informal determination about wetlands on the property.

“We walked all that land and she said, ‘You know, this is clearly wetland,’ and she

pointed out some of the markers,” Davis said. “She did indicate, in all honesty, that she thought there was some upland there. Not that it was all upland.”

Davis also said what he and Shaffer inspected that day was a section of the property located on the lake side of the new road. As the land approaches the lake, the ground gets darker and wetter and shows more wetland markers. Farther from the lake the ground is dryer.

Davis, though, remembers the meeting with Shaffer left him to believe he didn’t need to worry about more development on the Holt property.

Shaffer said she remembers the meeting differently.

“His recollection is different than mine,” she said. “You really need to see the layout of the land.”

Shaffer said she and Davis discussed part of the property that lies in between Davis’ lot and Intermediate Lake.

“He had asked me about the piece that was directly in front of him, and all of that is beautiful, regulated wetlands,” she said.

The part of the property where the road went in, in her opinion, was not wetlands, Shaffer said.

‘NEEDS TO BE A CAREFUL REVIEW’

Christopher
Grobbel, an environmental consultant who runs Grobbel Environmental
Planning Associates, assessed the Holt property from a neighbor’s land.
Grobbel, who NMEAC has used as an environmental consultant for over 15
years, was instructed not to trespass on the Holt property.

Grobbel said despite the limitations he was able to come to some conclusions.

He
said a section of the property nearest the lake was certainly wetlands
and a section further from the lake was probably wetlands.

Reisig
took Grobbel to a corner of the Davis property for a visual inspection
of the land where the road was installed and Grobbel took a soil sample.
Grobbel was also able to inspect aerial photos of the Holt property and
he checked the property in the National Wetland Inventory.

“The soil survey and wetland inventory maps from the federal government show that it is all wetland,” Grobbel said.

There appear to be two soil types on the property, he said, one closer to the lake and the other further away.

“With
certainty we have wetlands on this side of this line and very likely
there are wetlands on that side of the line,” Grobbel said, pointing to a
line on an aerial photo that shows where the soil becomes darker near
the lake. “I have no question that there are wetlands on the property. I
think there needs to be a careful, independent review of exactly where
those wetlands are.”

“It’s not ‘most likely wetlands,’ I’ve been doing this for almost 30 years,” Voice said.

Voice said Grobbel could not make a determination about the Holt property from a neighboring property.

“Every
site is different and you can’t do a wetland determination without
going on the site,” Voice said. “It doesn’t really matter what he found
in a soil pit on the Davis property.”

Reisig
said he believes Grobbel’s findings are valid because he took a soil
sample in the same wetlands complex as the road. Indeed, the corner of
the Davis property is just feet from the place where the road turns
toward the garage pad.

“It’s all connected. It’s the same wetland complex that the road was built on,” Reisig said.

‘NOT REALLY ANYBODY’S BUSINESS’

Shaffer, who Reisig blames for the construction because she issued the Part 91 permit, said she has no authority over wetlands.

Nonetheless, she also said she believes that where the road and garage foundation were constructed is dry land.

“The
whole property does not have all three of those (wetland indicators:
wetland plants, hydric soil, and the presence of water) in the location
where the garage went,” Shaffer said.

She added: “The state will make that determination. They have not done that.”

At
any rate, she said, when she issues a Part 91 permit, she is not
authorized to deny a permit due to the existence of wetlands.

“I
don’t believe there were wetlands involved in this particular piece,
but I cannot hold up a permit for wetland,” Shaffer said.

Reisig
said he believes the DEQ should have been brought in before a permit
was approved and before construction commenced and he believes Shaffer
has been too accommodating to Voice and Holt.

Reisig
said soil erosion officers are supposed to raise questions if they
believe a proposed road could intrude into wetlands. He said he believes
Shaffer has looked the other way despite evidence of wetlands.

“We
don’t have this problem in any other counties,” Reisig said. “We just
haven’t had this problem of roads going through wetlands in Grand
Traverse County, or say in Leeanau County or in Benzie County.”

Shaffer
insists she didn’t look the other way, and she points to Voice’s
delineation. It shows the road and garage do not go through wetlands,
she said.

That delineation was not made part of the public file for the soil erosion permit, however.

In
notes contained in the soil erosion permit file, which Reisig obtained
under the Freedom of Information Act and provided to the Express,
Shaffer explains why the delineation is not there.

After
she learned about the questions raised by Reisig about the possibility
of wetlands on the property, “I contacted Steve Voice to review his data
sheets on the delineation. ... Steve is not comfortable with them being
part of the file as it is FOIA-able. Voice stands behind his work but he
and Greg (Reisig) have had run-ins in the past and (he) does not
believe this is Reisig’s business.”

Asked
why the Voice delineation was not in the file, Shaffer said: “I don’t
think it was necessary ... I guess that’s not really anybody’s business
but the property owners.”

CONCERNED ABOUT FUTURE PLANS

Reisig and others believe possible wetland destruction is their business.

Especially
in a case like the Holt property, Reisig said, because he believes
further development is planned at the site. He believes the road was
constructed to facilitate a larger lakeside development that would
include three to five lakefront lots.

The
road runs into the property from M-88 toward the lake, then parallels
the lake for about 400 feet, until it turns toward the lake again to the
spot where the garage foundation was constructed, according to the
plans included in the soil erosion permit.

Grobbel
agreed. “When roads like this go in, it is typically in advance of
subdivision for residential development,” Grobbel said.

Voice
said there are currently no plans for further development but he said
the Holts have the right to split and develop their property. Voice said
due to zoning the property could only be split into three lots.

Davis
said he is also concerned about how secretive Holt and Voice have been.
In addition to making sure his wetland delineation was not part of a
public file, Voice sent notices to Reisig and Grobbel ordering them to
stay off the property.

“I really wonder why he would do that.

That
struck me as very odd, if everything is above-board and your ducks are
all in a row and you’ve done everything legally. Why would you respond
that way?” Davis said.

Voice said Reisig and Grobbel are not entitled to conduct an independent investigation.

“This
is private property, they have no right,” Voice said. “It doesn’t
concern them. I did a private wetland determination for a client.”

Voice and Reisig have tangled before over wetlands, most notably in Elk Rapids a decade ago.

There,
with a delineation from Voice, developer Bill Clous won approval for
the Elk Rapids Preserve development from state officials, until the US
Army Corps of Engineers entered the fray after lobbying from Reisig and
determined the property contained federally regulated wetlands. The
ruling effectively put an end to the development in sensitive areas.

Voice said the Elk Rapids Preserve case should have no bearing on this case.

In
that case, Voice said his findings of whether the land at issue was
regulated wetlands were upheld by state regulators and later reversed by
federal authorities.

He said Reisig is not qualified to question his credentials or expertise.

“He’s
upset about a project,” Voice said. “I’ve been doing wetlands
determination for a long time ... I’ve done a lot of wetland
determinations all over the state of Michigan. When my delineations have
been reviewed, they are generally confirmed.”

UNDER INVESTIGATION

Reisig
said he is upset that Shaffer would use Voice’s delineation to defend
her work because she was involved as soil erosion officer in the Elk
Rapids Preserve case and she knows Voice’s work in that case was
rejected by federal regulators.

Voice
insists that, even though Shaffer used his wetlands delineation in the
Holt case to defend the Part 91 permit she issued, soil erosion officers
should not take wetlands into account when issuing a permit.

There
are two separate laws at play that govern development near bodies of
water. Part 91, which pertains to earth movement of over one acre or
within 500 feet of a body of water, is enforced at the county level, and
Part 303, which pertains to wetlands regulation, and is enforced at the
state level by the DEQ.

Should a soil conservation officer hold off issuing a permit if they suspect wetlands on a site?

Kevin McElyea, drain commissioner for Grand Traverse County responsible for Part 91 permits, said it is more complicated.

“I almost want to say yes and no,” McElyea said.

He
said the possibility of the presence of wetlands should give a soil
conservation officer pause before they issue a permit. Assuring that
soil doesn’t run off into bodies of water is a requirement of a Part 91
permit, he said.

However,
it is true that soil erosion officers don’t have any authority over
wetlands, he said. It is up to the DEQ to issue Part 303 permits that
allow the destruction of wetlands.

And
once an application for a Part 91 permit has been made, the soil
erosion officer has 30 days to respond or the permit is granted by
default, he said.

“If
I am certain that there are wetlands in the area, then I negotiate with
the applicant and have them get a Part 303 permit,” McElyea said. If
that fails, “we advise the applicant, and we also give a heads up to the
DEQ.”

In the Holt case, the DEQ, after Reisig made a complaint, has since gotten involved.

Roxanne
Merrick of the DEQ’s water resources division in Gaylord said a site
inspection was conducted on May 10. She said no determination had yet
been made in the case.

LANDOWNERS POLICE THEMSELVES

A lot can be at stake in the question of whether and where wetlands exist on a particular piece of property.

A conclusion from an environmental consultant that a property is dry could be very valuable to a landowner.

“It
dramatically increases” the property value, said Grobbel, the
environmental consultant who works for NMEAC and other clients.

The
Holts purchased the property, which includes 704 feet of shoreline, in
September, 2005 for $145,000, according to Antrim County records.

“That’s a very low price to pay for more than 700 feet of shoreline in northwest Michigan on the Chain of Lakes,” Grobbel said.

This case also demonstrates the weaknesses involved in the state’s passive wetlands regulation, Reisig said.

If
Davis and Reisig hadn’t noticed the construction on the Holt property,
it’s likely it would have gone unnoticed altogether and the DEQ would
have never gotten involved.

Reisig said he is worried about what happens to wetlands across the state when no one is paying attention.

The DEQ relies on applicants or others to alert them to violations or to projects that might need a permit.

“The
burden is on the landowner. The state doesn’t go around and police
wetland conditions on all properties unless somebody reports a problem,”
Grobbel said.

Grobbel
said he expects an improving real estate market means there will be
more pressure in Northern Michigan from people who want to develop
lakefront property where there may be wetlands.

“We have had about a three- or fouryear lull in this kind of thing because of the economy,” Grobbel said.